This case involves a claim for age discrimination under ORS 659A.030 by Marilyn Huffman ("Ms. Huffman"), an ex-employee of the Scappoose School District ("the District"), against the District and a former Principal ("Mr. Powell"). Defendants have brought a motion for summary judgment. (Def.'s Mot. for Sum. J. [14]). I hereby GRANT Defendants' motion in full on six of the eight claims brought by Plaintiff, and GRANT partial summary judgment on another claim.

BACKGROUND

Ms. Huffman was employed as a teacher with the Scappoose School District for over twenty-five years. (Huffman Decl. [20] at 3). Ms. Huffman's supervisor was co-defendant Kelly Powell ("Mr. Powell"). Ms. Huffman was reprimanded for calling her students "smart asses" on October 19, 2011. (Vickers Decl. [15] at 13). Ms. Huffman was again reprimanded for calling her students "monkeys" on April 2, 2013. (Vickers Decl. [15] at 15). Ms. Huffman contested that reprimand through the formal grievance procedures available in her employment contract, and the grievance was expunged from her record. (Vickers Decl. [15] at 20-21). Ms. Huffman alleges that she was the victim of harassment by Mr. Powell because of her age and that Mr. Powell threatened her when she filed a complaint with the EEOC. (Huffman Decl. [20] at 4-5). Ms. Huffman additionally alleges that Mr. Powell implored her to retire to make room for younger employees (Compl. [1] at 5).

Ms. Huffman was placed on the first "Plan of Assistance" for the period of April 2, 2013, through June 7, 2013. (Huffman Decl. [20] at 5);(Vickers Decl. [15] at 17). A Plan of Assistance is a disciplinary measure that includes oversight guidelines and improvement schedules for teachers. (Vickers Decl. [15] at 17). On June 6, 2013, that Plan was supposedly (and informally) extended through the summer, and on August 28, 2013, the second Plan of Assistance was implemented. Ms. Huffman filed a complaint with the EEOC on June 17, 2013. (Huffman Decl. [22] at 14). On February 18, 2014, the District extended Ms. Huffman's employment contract for the 2014-2015 school year. (Vickers Decl. [15] at 22). Mr. Powell informed Ms. Huffman that she had completed the second Plan on March 7, 2014. (Vickers Decl. [15] at 30). She retired in July 2014. (Vickers Decl. [15] at 10).

STANDARD OF REVIEW

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In determining whether a genuine issue of material fact exists, the court must view all facts and reasonable inferences in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). When "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation omitted).

DISCUSSION

Ms. Huffman has brought an action against the District and Mr. Powell with eight separate claims. They are: (1) Age Discrimination under the Age Discrimination in Employment Act ("ADEA"), (2) Retaliation under the ADEA, (3) Willful Violation of the ADEA, (4) Age Discrimination under state law ORS 659A.030, (5) Intentional Infliction of Emotional Distress, (6) Abuse of Process, (7) Intentional Interference with Contractual Relations, and (8) Breach of Contract. For the following reasons, I GRANT summary judgment in full for the Defendants on claims (1), (3), (5), (6), (7), and (8), and I GRANT partial summary judgment for the Defendants on claim (2), and I DENY summary judgment for Defendants on claim (4).

I. Age Discrimination: ADEA

To establish a claim for age discrimination (disparate treatment), Ms. Huffman must show: (1) she is a member of a protected class, (2) she was qualified for the position and performing her job according to her employer's expectations, (3) she was subject to adverse employment action, and (4) similarly situated positions outside of her protected class were treated more favorably. See Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).[1]

Taking these elements one by one, Ms. Huffman has not provided evidence sufficient to overcome summary judgment because she has failed to provide any evidence that similarly situated persons outside of her class were treated more favorably.

A. First Element-Protected Class

On the first element, Ms. Huffman is admittedly a member of a protected class. (Def.'s Mot. for Sum. J. [14] at 5).

B. Second Element-Performing up to Expectations

On the second element, there is a factual dispute as to whether Ms. Huffman was performing her job according to the District's expectations. If she was not performing up to expectations, then her claim must fail. Defendant argues that by calling her students "monkeys" and "smart asses, " Ms. Huffman was not performing up to expectations. (Def.'s Mot. for Sum. J. [14] at 5). However, Ms. Huffman contests the "monkeys" allegation. She claims that she never made that statement (Vickers Decl. [15] at 7) and that the reprimand was expunged from her record. (Pl.'s Resp. [19] at 5). She admits that she said the "smart ass" comment (Pl.'s Resp. [19] at 6), but it occurred over a year before the incident at issue here.

In its reply brief, the District argues that the presence of a factual dispute regarding whether or not Ms. Huffman actually called her students "monkeys" does not create a genuine issue for trial, since it is admitted that she was reprimanded for doing so. (Def.'s Reply [23] at 5). This is incorrect since the existence of a reprimand is not at issue. Rather, the inquiry concerns whether Ms. Huffman was performing according to expectations. If, as Ms. Huffman claims, the second reprimand was undeserved, and she did not in fact misbehave, then a reasonable jury could conclude that she was performing her duties up to expectations. Furthermore, even assuming arguendo that the first Plan (April 2, 2013 through June 6, 2013) was legitimately based on Ms. Huffman's misbehavior in calling her students "monkeys, " that does not foreclose the possibility that her performance met expectations during the probationary period that followed. Ms. Huffman states that "[t]here was nothing that occurred between April 2, 2013, and June 6, 2013, that would justify [Mr. Powell] again extending the plan of assistance." (Huffman Decl. [20] at 8). Therefore, viewing the facts in the light most favorable to Ms. Huffman, a reasonable jury could conclude that Ms. Huffman was performing up to expectations when she was placed on either or both Plans of Assistance.

C. Third Element-Adverse Employment Action

On the third element, the Ninth Circuit has taken an "expansive" view of adverse employment actions, defining them as actions "that materially affect[] the compensation, terms, conditions, or privileges of... employment. We have held that assigning more, or more burdensome, work responsibilities, is an adverse employment action." Davis, 520 F.3d at 1089 (internal quotations omitted).[2]

Ms. Huffman focuses on the Plans of Assistance under this count, and alleges that the Plans were a "substantially increased workplace burden." (Pl.'s Response [19] at 7). The exact tasks included keeping a log of all classroom management situations, preparing weekly lesson plans to present to Mr. Powell on each Monday, attending trainings, and observing other classrooms. (Pl.'s Response [19] at 7). The Defendants do not deny these allegations, but insist that the Plans were justified for "improvement" reasons. (Def.'s Reply [23] at 6). Without dispositive evidence to the contrary, a reasonable jury could conclude that Ms. Huffman was subjected to an increased work burden from the Plans. Therefore, Ms. Huffman has provided enough evidence to overcome summary judgment for this element.

1. Constructive Discharge

Ms. Huffman also alleges that she was constructively discharged under this count. Constructive discharge is not an independent action, but rather satisfies the adverse employment element for an age discrimination claim. A plaintiff may sue for constructive discharge if the working conditions become so intolerable that a reasonable person in the plaintiff's position would have resigned, and those conditions were caused by discriminatory behavior based on the plaintiff's protected class. See Pa. State Police v. Suders, 542 U.S. 129, 142-43 (2004). In McGanty v. Staudenraus, the Oregon Supreme Court explained that a constructive discharge is present in Oregon if:

(1) the employer intentionally created or intentionally maintained specified working condition(s); (2) those working conditions were so intolerable that a reasonable person in the employee's position would have resigned because of them; (3) the employer desired to cause the employee to leave employment as a result of those working conditions or knew that the employee was certain, or substantially certain, to leave employment as a result of those working conditions; and (4) the employee did leave the employment as a result of those working conditions.

McGanty v. Staudenraus, 321 Or. 532, 557 (1995). In this case, Ms. Huffman has not provided enough factual detail to satisfy the second and fourth elements of the McGanty standard. This is because she has not alleged facts that would lead a reasonable person in her position to resign, and even if she did, the timeline is such that those facts did not cause her to retire early. The Ninth Circuit has stated that "[w]e set the bar high for a claim of constructive discharge" to encourage employees to address discrimination before they depart. Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007) (citing Thorne v. City El Segundo, 802 F.2d 1131, 1134 (9th Cir. 1986)). Even taking all of the evidence in her favor, Ms. Huffman has failed to establish a claim for constructive discharge.

This is primarily because of the timing of Ms. Huffman's retirement. In Chertoff, the plaintiff remained employed for three months under allegedly intolerable conditions. The Ninth Circuit ruled that "[a]s a matter of law, these are not the actions of someone who finds his working conditions so intolerable that he felt compelled to resign." Chertoff, 494 F.3d at 1185. S ee also Manatt v. Bank of America, 339 F.3d 792, 804 (9th Cir. 2003) (noting that a racially offensive work environment which ended a month prior to plaintiff's departure could not support a constructive discharge), Montero v. AGCO Corp., 192 F.3d 856, 861 (9th Cir. 1999) (noting that sexual harassment which ceased three to four months prior to plaintiff's departure could not support a constructive discharge).

In this case, Ms. Huffman retired four months after the allegedly discriminatory Plan of Assistance was completed (March 2014 - July 2014), one month after Mr. Powell had retired (June 2014 - July 2014), and five months after she received a twelve month contract extension (February 2014 - July 2014). Under the Ninth Circuit's reasoning in Chertoff, Manatt, and Montero, those time delays cannot support a claim for constructive discharge.

As such, summary judgment is appropriate for the District and Mr. Powell on the theory of constructive discharge. This, however, does not mean that Ms. Huffman cannot proceed with her claim for age discrimination under the ADEA. But just because Defendants' alleged conduct in this case does not support constructive termination does not mean that it was not an adverse employment action for the purposes of the third element.

D. Fourth Element-Similarly situated Persons treated more favorably.

The final element to Ms. Huffman's age discrimination claim under the ADEA is that similarly situated persons were treated more favorably than she was because of her age. Ms. Huffman claims that Mr. Powell had harassed three older employees before her, ultimately resulting in two others retiring. (Huffman Decl. [20] at 4). But these employees' names and information have not been provided to the Court. No evidence whatsoever has been provided to demonstrate the experience of younger employees under Mr. Powell. This raises the issue of whether Ms. Huffman has provided enough evidence that similarly situated individuals ("comparators") were treated more favorably. It is my opinion that she has not done so.

The Ninth Circuit has held that plaintiffs "must demonstrate, at the least, that they are similarly situated to those employees [comparators] in all material respects." Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006).[3] Since Ms. Huffman has not specifically identified any similarly situated individuals who were treated better than her, she is unable to subsequently demonstrate their fitness as comparators. The lack of any concrete comparator means that Ms. Huffman cannot satisfy the requirements from Moran. Even viewing the evidence in Ms. Huffman's favor, a reasonable jury could not find that similarly situated individuals were treated better than Ms. Huffman.

For the reasons specified above, I grant summary judgment for the Defendants on the count of Age Discrimination under the ADEA.

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